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May 13, 2005

Notable developments concerning capital processes

Thursday brought two interesting developments concerning death penalty procedures: (1) a reversal by the First Circuit of District Judge Nancy Gertner's unique jury bifurcation approach in a federal capital case (previously discussed here), and (2) a new Texas Defender Service study entitled "Minimizing Risk: A Blueprint for Death Penalty Reform in Texas" which compares "best practices" recommended by the Illinois Commission on Capital Punishment to existing procedures in Texas.

The district court, presiding over a complex multi-count, multi-defendant capital case, issued a pretrial order calling for the empanelment of two separate juries: one to determine guilt and the other, totally different in composition, to determine whether to impose the death penalty. Before us, the government asserts that the Federal Death Penalty Act (FDPA) forbids this binary course of action. We conclude that the district court's unprecedented order presents a basic, previously undecided question of substantial public importance and, accordingly, entertain the government's petition for advisory mandamus. Exercising that jurisdiction, we proceed to correct and countermand the district court's erroneous interpretation of the FDPA.

2. The new Texas Defender Service study, "Minimizing Risk: A Blueprint for Death Penalty Reform in Texas," is a comprehensive document that runs over 150 pages (and can be accessed at this link). The study's executive summary is available here, and it notes that the study "found that Texas does not comply with 80% of the safeguards of the criminal justice system" recommended by the Illinois Commission on Capital Punishment. The executive summary also states that "[o]ur findings reveal an urgent need for death penalty reform in nine specific areas to reduce the risk of wrongful convictions and arbitrary death sentences."